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December 12th 2008

Weapons Confiscation in Wisconsin

(copied from received email 12/12/08)



Further Update
(2/11/09) - go to separate page.

Update (12/17/08) - The next scheduled Court Date is February 2009 at -

West Allis Municipal Court   11301 West Lincoln Avenue  West Allis,  Wisconsin 53227

 

If someone disagreed with you about an article or story you published and then complained to the police who came into your business and arrested you for disorderly conduct, would that incident be newsworthy?

What if the police arrested you for disorderly conduct while you were exercising any other constitutionally protected right because someone did not want you to exercise your right? Would you want to tell the people of Wisconsin how fragile it is to exercise their rights?

Once arrested, do you think an employer or all your friends and neighbors would understand or would some of them want to maintain more distance with you? Unfortunately, being arrested is the same thing as being found guilty to many people in the court of public opinion. The police don’t arrest innocent people just for exercising a constitutionally protected right after all. That would be outrageous.

Or do they?

Please come (or send a reporter) to the West Allis City Courthouse on Tuesday December 16th at 8 am when this question will be answered in court.

On August 22, Brad Krause was planting trees in his yard, at least until police stormed his residence and arrested him. It turns out they received a call from a man who said he didn't appreciate that Brad carried a gun, and wanted something done about it.

The West Allis police department sent two squads to investigate, and found Brad in his yard, minding his own business planting trees. From behind him, police rushed him, yelling, "Don't move!" while bearing down on him with their weapons drawn.

They shortly discovered Brad had no criminal record and was lawfully openly carrying on his own property, but instead of releasing him and returning his weapon, they tried to figure out how to arrest him. A call to the supervising lieutenant provided the answer: claim his action of carrying a weapon is disorderly conduct, and haul him down to the station. His firearm was taken away from him without a receipt, and it has not been returned. The police have effectively banned his exercise of his right by disarming him.

The fact is that Wis. Stat. § 941.23 does not ban or prohibit the lawful carrying of firearms by citizens. By enacting the law, the legislature intended to force citizens to openly carry their firearms while in public, which is what Mr. Krause was lawfully doing (additionally, he was on his own property).

Mr. Krause is self employed as a property manager and this action by the City of West Allis has cost him long term business relationships. The police had him standing in handcuffs on his own property for 45 minutes with squad cars parked in front of his residence while they tried to figure out a way to arrest him. Fortunately, Mr. Krause had taken a friends advice and he had a voice recorder with him and the entire incident was recorded and it has been transcribed.

Civil rights are very important – all of them – which is why they are protected from governmental actions just like this. The media would be all over this story if a voter had been wrongly arrested while waiting in line to vote, or a worshipper had been arrested while attempting to enter their place of worship, or a reporter was arrested while writing an article.

The Wisconsin Supreme Court has said an otherwise reasonable exercise of police power cannot be invoked in a way that "eviscerates," "destroys," "frustrates," or "nullifies" the constitutional right to bear arms, yet that is exactly what is being done by law enforcement departments all over Wisconsin today. In Wisconsin, constitutional rights do not expand the police power; they restrict the police power. See Buse v. Smith, 74 Wis. 2d 550, 564, 247 N.W.2d 141 (1976); see also Robert Dowlut & Janet A. Knoop, State Constitutions and The Right to Keep and Bear Arms, 7 Okla. City U. L. Rev 177, 185 (1982) (describing the general application of this principle).That is why this is such an important matter and I am asking for you to publically expose this unlawful use of police power.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Below is important background information:

1) There is no state statute prohibiting an openly carried firearm in Wisconsin. To the contrary, Wis. Stat. § 941.23 was enacted by the legislature to force the open carry of firearms.

2) Excerpts from State of Wisconsin v. Munir A. Hamdan - (emphasis added - footnotes can be found on the link below):
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=16460 ) - or download the PDF file here on JPFO.

¶41 Article I, Section 25 does not establish an unfettered right to bear arms. Clearly, the State retains the power to impose reasonable regulations on weapons, including a general prohibition on the carrying of concealed weapons. However, the State may not apply these regulations in situations that functionally disallow the exercise of the rights conferred under Article I, Section 25.The State must be especially vigilant in circumstances where a person's need to exercise the right is the most pronounced. If the State applies reasonable laws in circumstances that unreasonably impair the right to keep and bear arms, the State's police power must yield in those circumstances to the exercise of the right. The prohibition of conduct that is indispensable to the right to keep (possess) or bear (carry) arms for lawful purposes will not be sustained.

¶68 If the constitutional right to keep and bear arms for security is to mean anything, it must, as a general matter, permit a person to possess, carry, and sometimes conceal arms to maintain the security of his private residence or privately operated business, and to safely move and store weapons within these premises.

¶71 In circumstances where the State's interest in restricting the right to keep and bear arms is minimal and the private interest in exercising the right is substantial, an individual needs a way to exercise the right without violating the law. We hold, in these circumstances, that regulations limiting a constitutional right to keep and bear arms must leave some realistic alternative means to exercise the right.

¶72 For instance, in order to keep and bear arms for the purpose of securing one's own property, a weapon must be kept somewhere and may need to be handled or moved, all within the weapon owner's property. During these times, the firearm will be either visible or concealed. The State ** argues that even under the strictest enforcement of the CCW statute, a person lawfully in possession of a firearm will always retain the ability to keep the firearm in the open——holding the weapon in the open, keeping the weapon in a visible holster, displaying the weapon on the wall,32 or otherwise placing the weapon in plain view.** Jim Doyle was the Attorney General whose office argued that open carry was lawful.

¶119 To determine whether Wis. Stat. § 941.23 is constitutional on the facts of this case we must ask two questions. The first question is whether the regulation on concealed weapons is a reasonable exercise of the police power, namely, does the statute promote public safety, health, or welfare and bear a reasonable relation to accomplishing those purposes.56 The second question iswhether the reasonable exercise of the state's police power eviscerates the constitutional right to bear arms.

¶120 No one disputes that the prohibition on carrying a concealed weapon is a reasonable exercise of the State's police power.57Wisconsin Stat. § 941.23 promotes public safety. The primary justification for the prohibition on carrying concealed weapons is that it protects the public by preventing an individual from having a deadly weapon on hand of which the public (including a law enforcement officer) is unaware, which may be used in the sudden heat of passion.58 The public is safer, the argument goes, if it is able to take notice of those people who are carrying weapons and proceed accordingly. Indeed, in a case similar to the present case, State v. Mata, 199 Wis. 2d 315, 321, 544 N.W.2d 578 (Ct. App. 1996), the court of appeals concluded that a persuasive argument can be made that "a tavern owner's display of a handgun may deter crime while concealment of the gun probably would not."59

¶121 Moreover, by making it a misdemeanor to carry a concealed weapon, Wis. Stat. § 941.23 bears a reasonable and substantial relationship to the end of promoting public safety. Criminalizing conduct stigmatizes conduct and deters people from doing it, a conclusion the majority opinion agrees with as well.60 (However, the practice of criminalizing lawful conduct effectively creates an unlawful ban)

¶122 The second question in the present case is whether the reasonable exercise of the State's police power eviscerates the constitutional right to bear arms.61 As the majority opinion explains, an otherwise reasonable exercise of police power cannot be invoked in a way that "eviscerates," "destroys," "frustrates," or "nullifies" the constitutional right to bear arms.62 Short of that, however, as the majority opinion further explains, the right to bear arms is not absolute and is subject to reasonable regulation.63

¶123 In order to determine whether a statute eviscerates a constitutional right or merely reasonably regulates a constitutional right we must examine the "degree" to which the regulation frustrates the purpose of the constitutional right .64 For example, in City of Seattle v. Montana, 919 P.2d 1218 (Wash.1996), the Washington Supreme Court upheld a city ordinance regulating the carrying and possession of "dangerous knives" in the face of a constitutional amendment granting the right to bear arms. The court reasoned that the police power was reasonably exercised to "promote public safety and good order," and that the city did not enact a "complete prohibition on possession and carrying knives" but merely "regulated the carrying, transport, and use of knives."65 Therefore, the statute was constitutional.66

¶124 Wisconsin Stat. § 941.23 is similarly constitutional when applied to the defendant because it does not eliminate the right of an owner of a privately operated business to bear arms for security or defense but simply limits the manner in which he or she may exercise the right to bear arms. That is, § 941.23 does not prevent anyone from carrying a firearm for security, defense, hunting, recreation, or other lawful purposes. Rather, it limits the manner of carrying weapons, by requiring that a weapon that is on a person or within a person's reach not be concealed.67 The gist of the offense is the concealment. Thus, nothing about Wis. Stat. § 941.23 comes close to eviscerating, destroying, frustrating, or nullifying the right to bear arms in Wisconsin for the defendant here or any other person. The right to bear arms "is not impaired by requiring individuals to carry weapons openly."68

¶129 Second, and more importantly, the majority's dubious conclusions are irrelevant. The statute is presumed constitutional and the burden on the challenger is heavy. By enacting the statute the legislature has determined that public safety is advanced when owners of privately operated businesses, like all other individuals, are required to carry their guns openly. Although the majority opinion has set forth counterarguments to the legislature's determination that concealed weapons are hazardous to public safety, neither the majority opinion nor the challenger has carried the heavy burden of demonstrating that the legislative determination is unconstitutional because the degree to which it restricts the right to bear arms for owners of privately operated businesses eviscerates the constitutional right.

3) State Statute (66.092) 1995 Wisconsin Act 75, section 2: says;

…no political subdivision may enact an ordinance or adopt a resolution that regulates the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, licensing, permitting, registration or taxation of any firearm or part of a firearm, including ammunition and reloader components, unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.

4) This is Wisconsin case law defining what behavioral elements constitute Disorderly Conduct (no mention of a firearm):

State v Douglas D 2001 WI 47, para 15.243 WIS 2d, 204,626N.W, 2d 725. Para. 15

"The State must prove two elements to convict a defendant under this statute (947.01)" First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unnecessarily loud, or similar disorderly conduct. Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance". Emphasis added

I hope to see you on the 16th in West Allis. If the date should be moved for any reason, I will let you know.

Thank you.

Gene German
Minnesota DPS Certified Firearms Instructor

Utah BCI Certified Firearms Instructor

AACFI Wisconsin State Director

http://www.permittocarry.us/


The Liberty Crew
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